New York State Court of Claims

New York State Court of Claims

COBB v. THE STATE OF NEW YORK, #2007-044-516, Claim No. 112883, Motion No. M-72568


Synopsis



Case Information

UID:
2007-044-516
Claimant(s):
MICHAEL COBB
Claimant short name:
COBB
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112883
Motion number(s):
M-72568
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
MICHAEL COBB, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Paul F. Cagino, Assistant Attorney General Eileen E. Bryant, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 16, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, alleges that defendant State of New York (defendant) negligently lost certain real property belonging to him when he was transferred to Elmira Correctional Facility (Elmira) on March 3, 2006. In Motion No. M-72568, defendant moves to dismiss on the grounds of improper and untimely service. Although claimant has technically not responded to defendant's motion, he has instead brought on a new motion, Motion No. M-72686, requesting permission to file a late claim, which request defendant opposes. The Court hereby exercises its discretion to address the motions simultaneously in this Decision and Order. The alleged loss of claimant's property occurred on March 3, 2006. Claimant then filed an inmate claim, which was denied. Claimant appealed the denial, and the appeal was also denied, on March 20, 2006. Pursuant to Court of Claims Act § 10 (9), claimant was required to serve and file a claim within 120 days after exhaustion of his personal property claim administrative remedy, which would have been July 28, 2006. However, claimant served the Attorney General's Office on October 16, 2006, more than 120 days after the exhaustion of his administrative remedies. Moreover, claimant served the Attorney General's Office by regular mail, rather than by certified mail, return receipt requested, as required pursuant to Court of Claims Act § 11 (a). Defendant thereafter brought this motion to dismiss based on untimely and improper service.

Claimant's failure to comply with the filing and service requirements set forth in Sections 10 and 11 of the Court of Claims Act is jurisdictional in nature, and these requirements must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722). Failure to comply mandates dismissal (Lichtenstein v State of New York, 93 NY2d 911). Consequently, the claim must be dismissed.

In support of his motion for permission to file a late claim, claimant argues that he had no access to legal assistance during the 120-day period, thus justifying the delay. Claimant further asserts that the request to late file is made within the statute of limitations period attributable to the underlying action, pursuant to Court of Claims Act § 10 (6).

Unfortunately for claimant, permission to file a late claim under Court of Claims Act § 10 (6) is not available in connection with inmate property loss claims (Roberts v State of New York, 11 AD3d 1000 [2004]; Verdel v State of New York, Ct Cl, Jan. 10, 2006, Sise, P.J., Claim No. None, M-70055 [UID # 2006-028-504]). Claimant's motion for permission to file a late claim must be denied.

Defendant's Motion No. M-72568 to dismiss Claim No. 112883 is hereby granted, and claimant's Motion No. M-72686 for permission to file a late claim is hereby denied.


February 16, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion to dismiss and claimant’s motion to file a late claim:

1) Notice of Motion to Dismiss filed on November 21, 2006; Affirmation of Paul F. Cagino, AAG, dated November 21, 2006, and attached Exhibits A and B.
2) Notice of Motion to file a late claim filed on December 15, 2006, and attached exhibits.

3) Affirmation in Opposition of Eileen E. Bryant, AAG, dated December 21, 2006.


Filed Papers: Claim filed on October 16, 2006.